Raphael Shin Enterprises Pty Ltd v Minister for Planning [2018] NSWLEC 42

Raphael Shin Enterprises Pty Ltd v Minister for Planning [2018] NSWLEC 42

The motion for determination of a separate question was dismissed because there is significant overlap between the factual and legal issues relevant to the proposed separate question and those to be determined at the substantive hearing, making it unlikely that ordering the question separately would achieve savings in time or expense. The legal and factual complexity, especially concerning the definition of 'eco-tourist facility' and its linkage to clause 5.13, means the issues are not capable of discrete, efficient preliminary determination. The Court held the normal practice of all issues being heard together should not be departed from in this case.

Parties
Applicant (respondent on the Motion): Raphael Shin Enterprises Pty Ltd; Respondent (applicant on the Motion): Minister for Planning
Jurisdiction
Australia
Judgment Date
09 April 2018
Procedural Posture
Class 1 Development Appeal / Interlocutory Decision on Motion for Separate Question
Outcome
Motion for separate question dismissed; proceedings to continue in the usual course.
Legal Topics
Separate Question Orders, State Significant Development, Land Use Definitions, Eco Tourist Facility, Procedural Discretion
Planning and Environment Law Civil Procedure Separate Question Orders State Significant Development Land Use Definitions Eco Tourist Facility Procedural Discretion

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Parties

Raphael Shin Enterprises Pty Ltd

Applicant (respondent on the Motion)

Minister for Planning

Respondent (applicant on the Motion)

Procedural Posture

Class 1 Development Appeal / Interlocutory Decision on Motion for Separate Question

Legal Issues

  1. 1 Whether a separate question should be ordered regarding the land use characterisation of a development proposal in Class 1 proceedings
  2. 2 Criteria for determining if an issue is appropriate for separate determination under UCPR r 28.2
  3. 3 Interpretation of 'eco-tourist facility' in planning instruments and relevance to permissibility

Ratio Decidendi

The motion for determination of a separate question was dismissed because there is significant overlap between the factual and legal issues relevant to the proposed separate question and those to be determined at the substantive hearing, making it unlikely that ordering the question separately would achieve savings in time or expense. The legal and factual complexity, especially concerning the definition of 'eco-tourist facility' and its linkage to clause 5.13, means the issues are not capable of discrete, efficient preliminary determination. The Court held the normal practice of all issues being heard together should not be departed from in this case.

Court Disposition

Motion for separate question dismissed; proceedings to continue in the usual course.

Orders

  • The Minister's Notice of Motion be dismissed.
  • The Applicant's Class 1 Application be listed for hearing in the ordinary course with all issues to be determined together.